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ANALYSIS OF NOVEMBER 12-19, 2015 SUPREME COURT OPINIONS

[Posted November 21, 2015] A very busy period of travel and briefwriting for me has abated somewhat, giving me time to catch up on two weeks’ worth of Supreme Court opinions.

First, I’ll acknowledge the cause of my absence on November 12 – the ABA’s Appellate Summit was a terrific experience. The Virginia Appellate Summit is modeled loosely after it, and that gathering provides the best training in Virginia appellate advocacy; the ABA’s program is the best annual nationwide gathering of appellate jurists and lawyers. I can give you a save-the-date notice right now for the next one: it’ll be November 10-13, 2016, in Philadelphia. If you’re serious about your appellate practice, you need to make time to attend.

Sanctions

The November 12 opinion in Kambis v. Considine is a good illustration of where Virginia’s sanctions jurisprudence is headed. It’s required reading for anyone who sets foot inside a courtroom.

Sanctions under Code §8.01-271.1 are about a generation old; the statute was enacted in 1987 as a parallel to federal Rule 11. Since then, the Supreme Court has handed down a number of landmark decisions on sanctions. For trial lawyers, the names trip lightly off the tongue: Gilmore v. Finn in 2000; Taboada v. Daly Seven in 2006; Ford Motor Co. v. Benitez in 2007; Northern Virginia Real Estate v. Martins in 2012.

A number of these decisions have come down like a cold slap in the face. For example, in Benitez, the court ended a generations-old practice of pleading potential defenses in anticipation that discovery will turn up evidence to support them. And in Martins, the court approved sanctions in the eye-popping amount of $272,000, indicating clearly that courts can impose ruinous awards for egregious conduct.

Kambis v. Considine involves conduct that’s analogous to that in Martins – litigation that’s vexatious, intended to harass an opponent. But this decision comes with an important refinement.

The procedural history is very complex – to the point that I found myself repeatedly going back to reread chunks of the opinion to be sure I got it right – and in the interest of simplicity, I’ll focus on the holding and its import. The key component is the trial court’s express finding of “a certain level of intent to intimidate Ms. Considine in this particular case.” Based on that, the court imposed sanctions against Kambis and his former attorney totaling over $220,000.

Justice Powell’s opinion, for a unanimous court, doesn’t set out the assignments of error, so I can’t be sure about this, but I suspect that the appellant didn’t challenge that factual finding of intent. Instead, he argued that his pleadings were well-grounded in fact and supported by existing law. He supported that contention with a more-than-plausible fact: his pleadings “had survived demurrers, special pleas in bar and a motion for summary judgment.” How can you be sanctioned for filing pleadings that demonstrably aren’t frivolous?

The Supreme Court notes that there’s no indication that the trial court imposed sanctions based on frivolousness. Instead, it points to another component of the sanctions statute: that relating to pleadings filed “for an improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation.” The justices affirm the sanctions award because, irrespective of the merits of the pleading, it was filed to intimidate, and that, the court understandably finds, is an improper purpose.

Let’s pause for a moment to consider what this means. The three obligations in the sanctions statute are in the conjunctive. That means that if an attorney or party violates any one of the requirements, a court can impose sanctions. (This was the holding in another landmark sanctions case, Williams & Connolly v. PETA from 2007.) The Supreme Court expressly declines to consider whether Kambis’s pleadings were well-grounded in fact or supported by law, finding it irrelevant to the award of sanctions.

Did you see that coming?

Lawyers who have long viewed frivolousness as an essential component of sanctions will read this decision with surprise. The Supreme Court has now held that you can file a perfectly meritorious claim, and still get sanctioned if the trial judge figures you were doing it primarily for harassment or intimidation, instead of primarily to vindicate your legal claim.

How can the court know this? Well, in this case, the trial judge had some major help in the form of a smoking-gun e-mail from Kambis to his lawyer. (Somehow the attorney-client privilege for this communication ended up waived, presumably when the lawyer and client became subject to joint-and-several sanctions. That’s one of the horror stories from the Martins case.) It also helped that at oral argument in the Supreme Court, Kambis’s lawyer admitted that there was an intent to intimidate.

To put it mildly, it’s enormously important to figure out where the boundary is between sanctionable and non-sanctionable conduct. The court does what it can, even in a highly subjective field like this one, to spell that out in a footnote:

We recognize that almost any legal action is, in some way, intimidating. Such intimidation is inherent in our adversarial legal system and is generally not sanctionable, so long as the intimidation is a collateral effect of a party’s legitimate attempt to vindicate a legal right. The spectre of sanctions arises when intimidation is no longer a collateral effect. Thus, where a party brings an action or makes a filing primarily to intimidate the opposing party, such an action or filing is improper and runs afoul of Code § 8.01-271.1.

The careful reader will observe that the last sentence is likely to be oft-cited in sanctions motions that make claims like this one. That reader will also note Justice Powell’s use of the British spelling of spectre (instead of the mundane –er ending we typically use on this side of the pond). But that may be a sly hat tip to a certain James Bond movie that opened just six days before this opinion came down.

Criminal law

The court resolves two appeals in a single opinion under the caption Ricks v. Commonwealth, also issued on November 12. Both involve an issue of first impression, dealing with the strangulation statute, §18.2-51.6: “Any person who, without consent, impedes the blood circulation or respiration of another person by knowingly, intentionally, and unlawfully applying pressure to the neck of such person resulting in the wounding or bodily injury of such person is guilty of strangulation, a Class 6 felony.”

The novel issue is what constitutes a bodily injury. The justices elect a broad definition:

[T]oday we hold that “bodily injury” within the scope of Code § 18.2-51.6 is any bodily injury whatsoever and includes an act of damage or harm or hurt that relates to the body; is an impairment of a function of a bodily member, organ, or mental faculty; or is an act of impairment of a physical condition.

In resolving these appeals, the justices affirm the conviction of one defendant (Ricks) where the victim was choked to the point that she couldn’t speak for a couple of days; she also suffered a bruise on her throat. That’s enough of a bodily injury under the new definition to support a conviction.

In the other appeal (Commonwealth v. Chilton), the justices affirm the CAV’s reversal of the conviction, albeit on different grounds. There, the victim’s testimony didn’t establish that the defendant actually choked her at all. She testified that she “saw black but it wasn’t like I completely and totally lost conscious [sic].” She explained, “I closed my eyes.”

The Court of Appeals had reversed based on the fact that merely blacking out isn’t enough of an injury. The Supreme Court holds that blacking out is indeed a sufficient bodily injury, but the evidence here didn’t prove that the victim ever lost consciousness. That represents a victory for Chilton, but the ruling is a win for future prosecutors, who can get convictions based on even a momentary loss of consciousness.

Habeas corpus

We get a split decision in Velasquez-Lopez v. Clarke, involving a claim that a criminal defendant’s counsel was ineffective because she didn’t pursue an appeal for her client. The court handed down the ruling on November 19.

The defendant is from El Salvador, spoke little or no English, and was indigent. The trial court appointed a lawyer, who communicated with her client through a translator. After extensive consultation, he agreed to plead guilty to 33 counts of taking indecent liberties; he received a lengthy prison term.

Shortly after sentencing, the defense lawyer received word that must be quite familiar to court-appointed lawyers: the client was unhappy with her work in the case. The client asked her to “reopen” the case, and noted that his brothers were getting another lawyer who could pursue an appeal for him: “They want to appeal my case but we need you to open the case so that another attorney can do something for me.”

The lawyer visited her client in jail, and he confirmed that he did not want her to work on his case anymore. She also got a phone call from one of the brothers, confirming that the client did not want her to visit him again or file the appeal. She thereupon filed a notice of appeal, to protect her client’s right to appeal, and waited to hear from another lawyer.

It will come as no surprise to you that no new lawyer ever appeared, and the Court of Appeals dismissed the appeal for failure to file a timely petition. The client then filed a habeas claim, asserting that his lawyer provided ineffective assistance because she let his appellate deadline lapse.

The circuit court convened a hearing in which the lawyer testified about her client’s instructions, which look unmistakable to me. They looked unmistakable to the judge, too, and he denied habeas relief. The Supreme Court agreed to take a look.

Five justices vote to affirm the denial of the habeas petition. Justice McClanahan writes the majority opinion and notes that the lawyer can hardly be faulted for obeying her client’s express instructions. Indeed, it’s hard to imagine a claim of ineffective assistance where a lawyer advises her client and then follows his express directions on how to act. The lawyer properly filed the notice, and her not filing a subsequent petition for appeal is exactly what the client directed her to do.

Justice Roush, writing for Justice Goodwyn, files a dissent in which she points out that a court appointment of counsel is good through the appellate process. Here, the lawyer was never formally relieved of her obligations to her client; that relief could only come in the form of an order of withdrawal. The dissent feels that the lawyer had an obligation to file the petition when a new lawyer never materialized. Under these circumstances, the dissent concludes that the lawyer’s actions didn’t meet the standard of care under Strickland v. Washington, so he should get the opportunity to pursue an appeal.